But Lady Justice Rafferty said a judge hearing at a recent Courts Martial case had ruled the defence could extend to an intruder who is initially invited into premises but later “becomes a trespasser”.

Martin’s case is the first non-military case in which the argument will be tested.

“There is sufficient merit in this case for it to be argued before the full court,” the judge said.

She adjourned the application for permission to appeal, directing that the case be decided by three top judges at a full hearing, with the appeal to follow if successful.